Greg Abbott's right about one thing: We should amend the Constitution

The lead story of the day, at least locally, is surely the call by Texas Gov. Greg Abbott for a new constitutional convention, as allowed by Article V of the Constitution, by petitions of two-thirds (34) of the 50 states. Apparently, he hopes that any such convention would be dominated by consideration of what he calls the "Texas Plan."

This presumably echoes the Virginia and New Jersey plans that structured much of the discussion in Philadelphia in 1787. Just as Virginia Governor Edmund Randolph introduced the Virginia Plan on the very first working day of the Philadelphia gathering, so we can expect Abbott to take the lead in the new convention, perhaps as part of his effort to unseat a possible President Hillary Clinton in 2020.

Unlike some political conservatives who are focusing on a single change — most commonly, the purported need for a balanced budget — Abbott, like Randolph before him, offers a more comprehensive set of nine changes that, taken together, would affect significant changes in our constitutional system. For those who revere the Constitution, that’s enough to make them suspicious. They would be wrong, however.

There is no good reason to revere the Constitution — that is, treat it as basically sacred — even if there is good reason to think well of many of the Founders. They did the best they could in 1787, but there is no reason to believe that they got it right for all time. They certainly did not think so; that’s why they had the foresight to include an amendment clause, even if it in fact makes the Constitution far too difficult to amend because of its onerous requirement that three-quarters of the states ratify any proposed changes.

Even more to the point, “Publius,” the pen name of Alexander Hamilton, John Jay, and James Madison in The Federalist, emphasized the necessity of being guided by the “lessons of experience” and not simply to be confined by outmoded “tradition” or even reverence for what he called “names” (including the Founders themselves).

The only way to make sense of Abbott’s remarks is to view them as acknowledgment that the Constitution we have, to paraphrase Donald Rumsfeld, may not be the Constitution we want to structure our politics in the future. I couldn’t agree more with the governor — with whom I usually agree on very little — in this case. We are long overdue for a serious discussion about the adequacy of a very old Constitution drafted for a very different country and world. Where Abbott and I almost certainly disagree is on what the particular defects of the Constitution are.

My own favorite presidential campaign was that of 1912, when all four candidates — Theodore Roosevelt, Woodrow Wilson, Eugene Debs, and William Howard Taft — offered serious suggestions about constitutional reform or, as in the case of Taft, defenses of the constitutional status quo. Perhaps as a result, the ensuing decade featured four genuinely important amendments, even though one of them (the 18th Amendment, which introduced Prohibition) was later judged to be a failure and repealed. But that decade exemplified the view, as explicated by Publius in the very first Federalist, that Americans were in fact capable of engaging in genuine “reflection and choice” about how we wished to be governed.

The ensuing century, alas, has seen a diminution of that faith. Most of us seem scared to death (sometimes for legitimate reasons) of the viewpoints and political preferences of those who disagree with us, and the idea of a new constitutional convention, as I have learned over the last decade while advocating one, is likely to provoke horror. But to fear such change is, ultimately, to believe that the promise of a truly democratic politics is impossible because “We the People” are no longer capable of engaging in sufficient “reflection and choice.”

At least some of Abbott’s ideas are worth very serious discussion, whether or not I would ultimately vote for them. For instance, why should a bare majority of Supreme Court justices be able to rule acts of Congress unconstitutional? Nebraska requires five of its seven justices to agree before a state statute can be found invalid under that state’s constitution; in North Dakota, the requirement is four of the five justices. A number of states, the most (in)famous being California, allow the electorate in effect to overrule its state supreme court by engaging in so-called “direct democracy” involving initiative and referenda.

Similarly, the world would not come to an end if, say, a majority of states representing a majority of the population could vote to override federal legislation on policy grounds. Or perhaps the model should be Maine or Ohio, both of which allow their voters to engage in popular overrides of legislation passed by their state legislatures. I personally would rather have had President Obama's Affordable Care Act, which I support, subjected to a national popular referendum than to the braying of lawyers shouting at one another about the one true meaning of truly unclear portions of the 1787 Constitution.

Abbott presents himself as a devotee of the Constitution. He himself italicizes the message that “the Constitution itself is not broken.” Let him assert that; perhaps he even believes it. But his long and thoughtful, heavily footnoted, speech belies that assertion. Parts of it are broken and in need of fixing. Let the conversation begin. Perhaps the Texas Plan led by Abbott will be countered by a California Plan defended by Jerry Brown. The whole country would be better off with such a debate.

Sanford Levinson

Law professor and author of "An Argument Open to All: Reading the Federalist in the 21st Century"